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8/14/2011
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Prevention of the removal of a child from the jurisdiction of the state



No. This is illegal.No permanent orders are allowed under section 11(1) of the Guardianship of Infants Act (GOIA)1964 as the Court is legally obliged to provide a continuing supervisory jurisdiction over the parenting of an infant until they reach adulthood.By removing a child permanently to live in another jurisdiction then only the laws of that jurisdiction will apply to the infant once as they become resident there.In so doing this effectively extinguishes the compulsory supervisory duty of the court and is therefore not legal.Further to this, all orders under Section 11(1) of the GOIA 1964 are 'interlocutory'i.e. not final, continuous and subject to change. Therefore a permanent order cannot be sought or granted as this cannot be varied or discharged as is the legal requirement under Section 12 of the GOIA 1964. Therefore where a Guardian is proven to be fit and has not been removed for not being fit and responsible, then the child cannot be taken from Ireland to any other Jurisdiction permanently without the consent of the other joint legal guardian.

In the event that one legal guardian makes their intention known to remove the child permanently against the wishes and consent of the other Guardian then an immediate restraining injunction should be sought in the High Court based on the above legal argument.
 
DO NOT WAIT FOR THE OTHER PARTY TO MAKE A COURT APPLICATION!
 
Research the legal techniques used in the following Supreme Court case: Sperm-donor-wins-court-block-on-sons-australia-trip

Ref:Guardianship of Infants Act 1964.

Legal Case Citations:

1. Interlocutory nature of all orders under S11(1) of the GOIA, 1964

the Supreme Court case of ‘B. v. B. [1975] I.R. 54 SC’.
O’Dalaigh C.J. is quoted as stating,
“It only remains to repeat that the court's order in respect of the custody of the children is interlocutory in character; moreover, the court order does not diminish the duty of the parents to be concerned about the welfare and education of their children. The parents, whatever their own difficulties and differences, should be concerned to remain in closest consultation in all that concerns the welfare of the children. Specifically, the parents should seek agreement with regard to their plans for the future education of their children to avoid the necessity of invoking the direction of the court”
Walsh J. is quoted as stating,

“I agree with the Chief Justice when he says that the provisions of s. 11 also underline that any order as to the custody of an infant, or any other order it may make affecting the welfare of the infant under that section, is necessarily only interlocutory in character because circumstances may change from time to time
The change of circumstances may be due to the current position of the parent or parents or the growing up of the child and the changes which the passage of time may bring about, not merely in the relationship of the parents to one another but in their relationship to the child, and the change which may be brought about in the fortunes or health or opportunities of any of the parties concerned. In a case such as this where one is dealing with young children, it appears to me that, in the absence of agreement between the parents from time to time as to what the welfare of the child requires, the court invoked under S. 11 of the Act may have to exercise something in the nature of a continuous supervision during the infancy of the child.”

2.Vindication of the rights of a child under the Irish Constitution.

the rights of a child are to be vindicated by the state as shown by O'Higgins CJ in the Supreme Court case G -v- An Bord Uchtála [1980] IR 32 where he states that "In exceptional cases the State under the provisions of Article 42.5 of the Constitution is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances, the State may have an equal obligation in relation to a child born outside the Family to protect that child, even against its mother, or if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights".

Contributed by a site visitor. If you can add clarity or further information, references or useful contacts please email them to dundalk@parentalequality.ie

 

 

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